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Decision No. 42-AT-C-A-2017

February 27, 2017

APPLICATION by Sheila Simpson, on behalf of herself and Greg Brown (applicants), against WestJet.

Case number:

16-02811

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) pursuant to subsections 67(3) and 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) concerning WestJet’s refusal to transport them between Calgary, Alberta and London, Ontario, and its alleged lack of sensitivity towards Mr. Brown and persons with disabilities in general.

[2] The Agency will address the following issues:

Did WestJet properly apply the terms and conditions set out in Rules 7.2 and 11.1 of its Domestic Tariff entitled Rules, Rates and Charges Applicable to the Transportation of Passengers and Goods Between Points in Canada, CTA(A) No. 5 (Tariff), as required by subsection 67(3) of the CTA?

Did WestJet apply a term and condition of carriage not set out in its Tariff?

Did Mr. Brown encounter an undue obstacle to his mobility pursuant to subsection 172(1) of the CTA?

[3] For the reasons set out below, the Agency finds that WestJet properly applied the terms and conditions set out in Tariff Rules 7.2 and 11.1. The Agency also finds that WestJet applied a term and condition of carriage not set out in its Tariff, namely that an attendant must sit next to the person with whom they are travelling. The Agency therefore orders WestJet to amend its Tariff to reflect its seating policy for attendants, as set out in its One Person One Fare (OPOF) policy. Lastly, the Agency finds that Mr. Brown, as a person with a disability, did not encounter an undue obstacle to his mobility.

BACKGROUND

[4] On October 2, 2015, the applicants were scheduled to travel on WestJet Flight No. 734 from Calgary to London. Mrs. Simpson was travelling as Mr. Brown’s attendant under the OPOF policy, which allows an attendant to travel without charge to assist a person with a disability. However, following events on the aircraft before departure, the applicants were refused transportation.

THE LAW

[5] The Tariff provisions and statutory extracts relevant to this matter are set out in the Appendix.

[6] The Agency’s jurisdiction in matters respecting the applicability of domestic tariffs is set out in section 67.1 of the CTA, which permits the Agency to determine whether an air carrier has properly applied a term and condition of carriage set out in its tariff. In the adjudication of an application pursuant to section 67.1, where the tariff provisions themselves are not being challenged as being unreasonable, the Agency must, on a balance of probabilities, determine whether the carrier has applied, failed to apply, or inconsistently applied the terms and conditions of carriage appearing in the applicable tariff. If the Agency finds that an air carrier has failed to properly apply its tariff, the Agency may order the air carrier, pursuant to paragraph 67.1(c), to take any appropriate corrective measures.

[7] Subsection 67.1(c) of the CTA also empowers the Agency to order an air carrier to take corrective measures if it is applying a fare, rate, charge or term or condition of carriage that is not set out in its tariff.

[8] With respect to applications made pursuant to subsection 172(1) of the CTA, the Agency applies a three-step process to determine whether there is an undue obstacle to the mobility of a person with a disability. The Agency must determine whether:

the person who is the subject of the application has a disability for the purposes of the CTA;

an obstacle exists because the person was not provided with appropriate accommodation to address their disability-related needs; and,

the obstacle is “undue”. An obstacle is undue unless the transportation service provider demonstrates that there are constraints that make the removal of the obstacle either unreasonable, impracticable, or impossible, such that to provide any form of accommodation would cause the transportation service provider undue hardship.

[9] Also of relevance to this case is Decision No. 6-AT-A-2008, wherein the Agency found that the carrier respondents shall not charge a fare for additional seats provided to persons who are required, pursuant to the terms of the carriers’ tariff, to be accompanied by an attendant, persons who are disabled as a result of obesity, and persons who require additional seating for themselves to accommodate their disability to travel by air.

ISSUE 1: DID WESTJET PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULES 7.2 AND 11.1 OF ITS TARIFF, AS REQUIRED BY SUBSECTION 67(3) OF THE CTA?

The applicants’ position

[10] The applicants state that they had confirmed aisle seats 12C and 12D on Flight No. 734 between Calgary and London. They submit that Mrs. Simpson’s confirmed seat was occupied by another passenger and that Mr. Brown’s confirmed seat would not recline. The applicants claim that, consequently, WestJet’s cabin crew moved them to alternate seats.

[11] The applicants submit that once reseated, Mrs. Simpson fell asleep, and was unaware that Mr. Brown was asked to move to another seat. The applicants state that three flight attendants then asked Mrs. Simpson to move. They submit that Mrs. Simpson did move, but concede that, as she was extremely tired, she used profanity against the cabin crew.

WestJet’s position

[12] WestJet states that the applicants had assigned seats 12C and 12D.

[13] WestJet submits that Mrs. Simpson, by remaining seated in the emergency exit row, was in breach of the OPOF policy, pursuant to which an attendant must sit next to the person with whom they are travelling. WestJet adds that Mr. Brown, as a person with a disability, was not eligible to sit in the emergency exit row as it was a contravention of Transport Canada’s cabin safety regulations.

[14] WestJet states that the applicants were removed from the aircraft due to Mrs. Simpson’s unruly behaviour and failure to follow the cabin crew instructions.

[15] In support of its answer to the application, WestJet submitted two Interference with Crew Member/Unruly Passenger reports (reports), both of which contain similar information.

[16] According to the reports, a flight attendant saw Mrs. Simpson seat herself in row 13 and Mr. Brown seat himself in row 14, both emergency exit rows. The flight attendant advised Mr. Brown that he could not sit in the emergency exit row. The reports then indicate that a passenger in row 16 gave up her seat so that the applicants could sit together and, as a result, Mr. Brown relocated to row 16.

[17] The reports state that the flight attendant then noted that Mrs. Simpson was sitting in an emergency row, but not with Mr. Brown, the passenger with whom she was travelling as an attendant. The flight attendant asked Mrs. Simpson to sit with Mr. Brown; however, Mrs. Simpson refused. Another flight attendant asked Mrs. Simpson to sit with Mr. Brown. According to the reports, Mrs. Simpson refused again, stating that she was not required to sit with him. She further requested to see the written document that specified this requirement. The reports indicate that Mrs. Simpson claimed that the flight attendant could not make her sit with Mr. Brown.

[18] The reports indicate that after this exchange, a third flight attendant went to speak with Mrs. Simpson to explain the situation; however, Mrs. Simpson interrupted the flight attendant, and repeatedly shouted: “I’m able body”. According to the reports, Mrs. Simpson became belligerent, continued shouting, used profanity, berated the cabin crew, was non-compliant and was making the other passengers uncomfortable. As this point, the decision was made to “off‑load [Mrs. Simpson] due to her combative/unruly demeanour and unwillingness to relocate from the emergency exit row”.

[19] The reports set out that the applicants were escorted off the aircraft by a Customer Service Support Manager.

Analysis and findings

[20] In reviewing this issue, the Agency has considered the following aspects of the application:

Advance seat selection

[21] Tariff Rule 11.1 entitled Advance Seat Selection states that advance seat selection is not guaranteed, and may be subject to change based on operational requirements. Therefore, WestJet’s obligation to its passengers, with respect to seating assignment, is to ensure that they have a seat on the aircraft. Tariff Rule 7.2e(m) entitled Carriage of Persons with Disabilities ‑ Seating Assignment provides, in part, that persons with disabilities cannot sit in an emergency exit row.

[22] It is unclear why WestJet did not provide Mrs. Simpson with the seat she had originally been assigned. The evidence is also inconsistent regarding who decided that the applicants would move to the emergency exit rows. Nevertheless, Mr. Brown eventually agreed to move to row 16 so that he would not be in the emergency exit row. At that point, it was a reasonable operational requirement that Mrs. Simpson change seats so that she would be seated next to Mr. Brown. It was reasonable to conclude that in the case of an emergency, or if the cabin crew needed to communicate instructions to Mr. Brown, his attendant needed to be seated with him to provide assistance, if necessary.

[23] The Tariff states that seat selection is not guaranteed, and may be subject to change based on operational requirements. Given the foregoing, the Agency finds that WestJet properly applied its Tariff.

Refusal to transport due to unruly behaviour

[24] Tariff Rule 7.2 entitled Carriage of Passengers allows the carrier, at its reasonable discretion, to remove any person from its aircraft when it is deemed necessary for their comfort and safety and the comfort and safety of the cabin crew, other passengers, or for the safe operation of the aircraft. This Rule also lists prohibited conduct and behaviour that will lead to a passenger being refused transportation, specifically engaging in belligerent, lewd or obscene behaviour and failing to comply with the cabin crew instructions.

[25] Both parties agree that Mrs. Simpson was asked three times by different members of WestJet’s cabin crew to move from her seat in the emergency exit row. The applicants acknowledge that Mrs. Simpson used profanity when she was asked to move; however, the applicants did not provide any further details regarding Mrs. Simpson’s actions or interactions with the cabin crew. Moreover, the applicants did not contest WestJet’s statements or the details found in the reports regarding Mrs. Simpson’s conduct when she was asked to change seats so she would be seated next to Mr. Brown.

[26] For the foregoing reasons, the Agency accepts the evidence found in the reports. The Agency finds that when asked to move from her seat in the emergency row, Mrs. Simpson became belligerent, insulted the cabin crew, was loud, used obscene and profane language, and refused to comply with the instructions of the cabin crew.

[27] The Agency therefore finds that Mrs. Simpson, in refusing to comply with the instructions of the cabin crew and in becoming belligerent and unruly, rendered her and Mr. Brown’s removal from the aircraft necessary for their own safety and for the safety and comfort of the cabin crew and the other passengers.

ISSUE 2: DID WESTJET APPLY A TERM AND CONDITION OF CARRIAGE NOT SET OUT IN ITS TARIFF?

[29] WestJet refers to the OPOF policy, which states that attendants must sit next to the person with whom they are travelling.

[30] The Agency expects that in the vast majority of cases, an attendant will be seated next to the person with a disability with whom they are travelling. The core purpose of the OPOF policy is to enable attendants to travel free of charge if a person with a disability requires them to assist in meeting their specific personal care needs and/or to provide physical assistance in the event of an emergency evacuation or decompression.

[31] The Agency notes that WestJet’s condition under the OPOF policy which requires an attendant to be seated next to the person with whom they are travelling is not found in the Tariff. This policy must be read in conjunction with Tariff Rule 7.2e(m), which states that persons with disabilities and their attendants will, if they so request, be seated together or in other seating arrangements of their choice. The inconsistency between the OPOF policy and the Tariff creates ambiguity or uncertain meaning respecting the rights and obligations of both the carrier and the passengers.

[32] Therefore, as the OPOF policy is inconsistent with the wording of the Tariff, and as WestJet made repeated references throughout these proceedings to the OPOF policy regarding the seating of attendants, the Agency finds that WestJet did, in fact, apply a condition not set out in Tariff Rule 7.2e(m). The Tariff must therefore be amended to ensure clarity and consistency, and to avoid misunderstanding and confusion.

ISSUE 3: DID MR. BROWN ENCOUNTER AN UNDUE OBSTACLE TO HIS MOBILITY PURSUANT TO SUBSECTION 172(1) OF THE CTA?

[33] A person with a disability will encounter an obstacle to their mobility if they can demonstrate that they need – and were not provided with – accommodation, thereby being denied equal access to services available to others in the federal transportation network.

[34] It is undisputed by the parties that Mr. Brown is a person with a disability for the purposes of Part V of the CTA and that Mrs. Simpson was travelling as Mr. Brown’s attendant under the OPOF policy. This suggests that Mr. Brown required, as an accommodation, an attendant, and that WestJet provided this accommodation by allowing Mrs. Simpson to travel with him free of charge.

[35] The applicants state that WestJet lacks sensitivity towards persons with disabilities; yet, they did not provide any evidence that WestJet was insensitive towards Mr. Brown, a person with a disability, or towards persons with disabilities in general.

[36] The evidence indicates that Mr. Brown was only spoken to once by the cabin crew and it was to advise him that he could not sit in the emergency exit row – an interaction that was not insensitive, but necessary for the safety of Mr. Brown and the other passengers. The applicants complain that they were removed from the aircraft; yet, this was as a result of Mrs. Simpson’s conduct, and was unrelated to Mr. Brown’s disability.

[37] The Agency therefore finds that Mr. Brown did not encounter an undue obstacle to his mobility.

CONCLUSIONS

Issue 1

[38] The Agency finds that WestJet properly applied the terms and conditions set out in Tariff Rules 7.2 and 11.1, as required by subsection 67(3) of the CTA.

Issue 2

[39] The Agency finds that WestJet applied a condition of carriage not set out in Tariff Rule 7.2e(m).

Issue 3

[40] The Agency finds that Mr. Brown did not encounter an undue obstacle to his mobility pursuant to subsection 172(1) of the CTA.

ORDER

[41] The Agency, pursuant to paragraph 67.1(c) of the CTA, orders WestJet to amend Tariff Rule 7.2e(m) to reflect the seating requirement for attendants specified in the OPOF policy.

[42] The application is otherwise dismissed.

APPENDIX

Canada Transportation Act, S.C., 1996, c. 10, as amended

67 (3) The holder of a domestic licence shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.

67.1 If, on complaint in writing to the Agency by any person, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;

compensate any person adversely affected for any expenses they incurred as a result of the licensee’s failure to apply a fare, rate, charge or term or condition of carriage that was set out in its tariffs; and

take any other appropriate corrective measures.

170(1) The Agency may make regulations for the purpose of eliminating undue obstacles in the transportation network under the legislative authority of Parliament to the mobility of persons with disabilities, including regulations respecting

the design, construction or modification of, and the posting of signs on, in or around, means of transportation and related facilities and premises, including equipment used in them;

the training of personnel employed at or in those facilities or premises or by carriers;

tariffs, rates, fares, charges and terms and conditions of carriage applicable in respect of the transportation of persons with disabilities or incidental services; and

the communication of information to persons with disabilities.

172(1)The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

WestJet’s Domestic Tariff entitled Rules, Rates and Charges Applicable to the Transportation of Passengers and Goods Between Points in Canada, CTA(A) No. 5

Rule 7.2 Carriage of Passengers

[…] Carrier reserves the right to refuse to board or transport or remove from an aircraft at any time, any person if such refusal or removal is, in the Carrier’s reasonable discretion, necessary or desirable for reasons of the health, comfort or safety of that person, passengers, the Carrier’s employees or agents, the aircrew, the aircraft or the safe operation of the aircraft, or is otherwise necessary or desirable to prevent violation of any applicable law, regulation or order of any governmental authority of those jurisdictions where the aircraft shall be flown from, to or over.

Rule 7.2e Carriage of Persons with Disabilities

(m) Seating Assignment

[…]

The carrier will provide appropriate seating for persons with disabilities. However, such seating must not be in an emergency exit row […]

Persons with disabilities and their attendants will, if they so request, be seated together or in other seating arrangements of their choice.

Rule 7.2g Passenger Conduct/Behavior

Examples of Prohibited Conduct that could give rise to the imposition of sanctions include:

[…]

ii. engaging in belligerent, lewd or obscene behavior toward a passenger or employee or agent of the Carrier;

iii. threatening, harassing, intimidating, assaulting or injuring a passenger or employee or agent of the Carrier;

[…]

v. failing to comply with all instructions, including all instructions to cease the Prohibited Conduct, given by the Carrier’s employees;

[…]

Rule 7.2h Sanctions

[…]

Despite anything written elsewhere in this tariff the Carrier’s sole liability to a person whom the Carrier refuses to carry following an incident of Prohibited Conduct is to provide a refund to the person of the unused portion of the person’s fare.

Rule 11.1 Policy and Procedures – Advance Seat Selection

[…]

Advance seat selection is not guaranteed, and may be subject to change based on operational requirements.